Citation Nr: 9812104
Decision Date: 04/17/98 Archive Date: 05/06/98
DOCKET NO. 94-19 432 ) DATE
)
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On appeal from the
Department of Veterans Affairs Regional Office in Los
Angeles, California
THE ISSUE
Whether the denial of the waiver of recovery of loan guaranty
indebtedness was timely appealed.
REPRESENTATION
Appellant represented by: Paralyzed Veterans of America,
Inc.
WITNESS AT HEARING ON APPEAL
Appellant
ATTORNEY FOR THE BOARD
T. L. Douglas, Associate Counsel
INTRODUCTION
The veteran served on active duty from January 1972 to
January 1975.
This matter comes before the Board of Veterans’ Appeals
(Board) on appeal from a November 1990 decision on waiver of
indebtedness of the Department of Veterans Affairs (VA), Los
Angeles, California, Regional Office Committee on Waivers and
Compromises (RO). It is noted that the veteran’s loan
guaranty indebtedness was originally established in January
1986, in the amount of $21,984.01, plus accrued interest.
The record reflects that in March 1994 the veteran testified
at a personal hearing before a Board Member who subsequently
became unavailable to participate in a Board decision. A
copy of the transcript of that hearing is of record.
In May 1996 the Board remanded the case to the RO to
adjudicate the issue of whether the veteran had filed a
timely substantive appeal for the purposes of establishing
Board jurisdiction, and to allow the veteran an opportunity
for an additional hearing before a Board Member.
In August 1996, the RO issued a supplemental statement of the
case which stated that the denial of waiver was final because
the veteran had not submitted a timely substantive appeal.
In March and July 1997, the Board remanded the case to the RO
to allow the veteran’s representative an opportunity to
present a statement in support of the claim.
The Board notes that in the August 1996 supplemental
statement of the case the veteran and his representative were
notified that an additional personal hearing before a Board
Member would be allowed if desired. The record does not
reflect that an additional Board hearing was requested;
therefore, this decision is based upon the evidence of
record.
CONTENTIONS OF APPELLANT ON APPEAL
The veteran contends, in essence, that he has submitted a
timely appeal, and that waiver of the amount of loan guaranty
indebtedness is warranted.
DECISION OF THE BOARD
The Board, in accordance with the provisions of 38 U.S.C.A.
§ 7104 (West 1991 & Supp. 1997), has reviewed and considered
all of the evidence and material of record in the veteran’s
claims file. Based on its review of the relevant evidence in
this matter, and for the following reasons and bases, it is
the decision of the Board that the veteran’s appeal was not
timely filed.
FINDINGS OF FACT
1. All relevant evidence necessary for an equitable
disposition of this appeal has been obtained.
2. The veteran’s original request for a waiver of recovery
of his loan guaranty indebtedness was denied by a decision on
waiver of indebtedness in November 1990.
3. The veteran was notified of the denial of waiver by
letter dated May 14, 1991.
4. In December 1991, the RO received the veteran’s notice of
disagreement.
5. The RO issued a statement of the case on October 30,
1992.
6. On December 10, 1992, the veteran filed a request for a
90 day extension of time for the filing of a substantive
appeal.
7. On January 29, 1993, the veteran’s representative filed a
request for a 60 day extension of time for the filing of a
substantive appeal.
8. A substantive appeal in the form of a VA Form 1-9, dated
April 30, 1993, was received at the RO on May 6, 1993.
CONCLUSION OF LAW
A substantive appeal or response to the statement of the case
pertaining to the November 1990 decision was not timely
filed. 38 U.S.C.A. § 7105 (West 1991); 38 C.F.R. §§ 20.200,
20.201, 20.302 (1997).
REASONS AND BASES FOR FINDINGS AND CONCLUSION
The Board has jurisdiction to decide questions on claims
involving benefits under the laws administered by the VA.
38 U.S.C.A. § 7104 (West 1991); 38 C.F.R. § 20.101 (1997).
An appeal consists of a timely filed notice of disagreement
(NOD) in writing and, after a statement of the case (SOC) has
been furnished, a timely filed substantive appeal.
38 U.S.C.A. § 7105 (West 1991); 38 C.F.R. § 20.200 (1997).
The NOD shall be filed within one year from the date of
mailing of notice of the result of initial review or
determination. Such notice, and appeals, must be in writing
and be filed with the agency of original jurisdiction which
entered the determination with which disagreement is
expressed. 38 U.S.C.A. § 7105(b)(1); 38 C.F.R. § 20.201
(1997). Thereafter, copies of the SOC will be submitted to
the claimant and his representative. The date of the SOC
itself will be considered the date of mailing for purposes of
determining whether a timely appeal has been filed. A
substantive appeal shall be filed within 60 days from the
date of mailing of the SOC, or within the remainder of the 1-
year period from the date of mailing of the notification of
the initial review and determination being appealed,
whichever period ends later. The appeal should set out
specific allegations of error of fact or law, such
allegations related to specific items in the SOC, and the
benefits sought on appeal must be clearly identified.
38 U.S.C.A. § 7105(b)(1); 38 C.F.R. § 20.302 (a) (1997).
An extension of the 60-day period for filing a Substantive
Appeal, or the 60-day period for responding to an
supplemental statement of the case , when such a response is
required, may be granted for good cause. The request for
such an extension should be in writing and must be made prior
to the expiration of the time limit for filing the response
to the supplemental statement of the case. 38 C.F.R.
§ 20.303 (1997).
The Board notes that the veteran’s original request for a
waiver of recovery of his loan guaranty indebtedness was
denied by a decision on waiver of indebtedness in November
1990, and the veteran was notified of the decision by a
letter dated May 14, 1991. The veteran submitted a timely
notice of disagreement with the decision in December 1991,
and a statement of the case was issued on October 30, 1992.
On December 10, 1992, the veteran filed a request for a 90
day extension of time for the filing of a substantive appeal.
On January 29, 1993, the veteran’s representative filed a
request for a 60 day extension of time for the filing of a
substantive appeal. There is no record of a response from
the RO to these requests. A substantive appeal in the form
of a VA Form 1-9, dated April 30, 1993, was received at the
RO on May 6, 1993.
Based upon the evidence of record, the Board finds that no
document was received by the RO to perfect the veteran’s
appeal of the November 1990 determination. Although the
record does not indicate that the RO granted either the 60 or
90 day extension which the veteran requested, the substantive
appeal was not received until May 6, 1993, over 120 days
after the expiration of the time period to perfect the appeal
and after either requested extension, if granted, would have
expired. As there is no timely perfected appeal as to the
issue of waiver of recovery of loan guaranty indebtedness,
the appeal must be dismissed.
ORDER
The denial of the waiver of recovery of loan guaranty
indebtedness was not timely appealed, and the claim is
dismissed.
THOMAS J. DANNAHER
Member, Board of Veterans' Appeals
NOTICE OF APPELLATE RIGHTS: Under 38 U.S.C.A. § 7266 (West
1991 & Supp. 1997), a decision of the Board of Veterans'
Appeals granting less than the complete benefit, or benefits,
sought on appeal is appealable to the United States Court of
Veterans Appeals within 120 days from the date of mailing of
notice of the decision, provided that a Notice of
Disagreement concerning an issue which was before the Board
was filed with the agency of original jurisdiction on or
after November 18, 1988. Veterans' Judicial Review Act,
Pub. L. No. 100-687, § 402, 102 Stat. 4105, 4122 (1988). The
date which appears on the face of this decision constitutes
the date of mailing and the copy of this decision which you
have received is your notice of the action taken on your
appeal by the Board of Veterans' Appeals.
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